Drawing from recently obtained immigration court records, this is the fourth of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. Part I here; part II is here; part three here. For entire series, click here and read from bottom up
The image above is the Canadian Consulate in Los Angeles, where Mr. Danard's own government unsuccessfully attempted to intercede and obtain his freedom.
On December 8, 2008, Mr. Danard won, ICE lost, and hence Mr. Danard was hoping to fly home immediately. However, unlike real judicial proceedings in this country, if the government loses its case in an immigration court it has 30 days to decide on whether it will appeal the decision. After it files the appeal, it will take several months, and some cases more than a year, for the Board of Immigration Appeals to rule on the matter. Pending the final decision, a respondent whom the government is alleging is deportable because of criminal convictions must await the outcome behind bars.
The result is that even when ICE loses the case on its merits, it has the legal leverage to force respondents into falsely confessing to the government's charges purely to avoid further delays in their release. In most cases, this coercion occurs with people who would like to remain in the United States, and hence there is a substantive good at stake--a non-citizen's right to U.S. residence--that gives these appeals some appearance of legitimacy.
In Mr. Danard's case, the record described below, including a signed form delivered to his deportation officer the day he arrived in Florence, Arizona, shows that ICE deportation officers and attorneys knew that he wanted to leave the United States, and yet nonetheless sought to prolong proceedings for only one purpose: achieving an ICE "win" at the expense of actually allowing him to leave the United States at the earliest point possible.
ICE MOTION TO REOPEN
On December 11, 2008, Robert Bartlemay, Sr., on behalf of the Department of Homeland Security, filed a Motion to Reopen Mr. Danard's case.
The motion contains numerous errors of fact revealing evidence of the DHS effort to run roughshod, and quickly at that, over Mr. Danard's rights, including the first sentence stating that Mr. Danard (his full name appears as the respondent) was in removal proceedings "under the name Guillermo G....." (last name omitted to protect someone else's privacy).
The rest of the motion is similarly out of touch with reality, including the statements that at his December 8, 2008 hearing Mr. Danard "admitted the allegations on the NTA," the charging document, and that he admitted that he "traveled to Mexico to buy a car." (Mr. Danard never conceded that he committed a Crime Involving Moral Turpitude, and he never stated that he flew to Mexico to buy a car; as indicated in the first post, he flew to Mexico for a vacation and ended up buying a car to drive back with stray puppies he and his wife Rachel were rescuing.)
The DHS needed to invent this motive of a car purchase because it would justify the fabricated statement on the NTA that Mr. Danard was in removal proceedings for violating conditions of a B-1 visa, a visa issued for business purposes. However, Mr. Danard never had a B-1 visa, nor did the government show otherwise.
Instead, the U.S. government created a story and, the day of Mr. Danard's arrest, lied to officials from the Canadian Consulate and claimed that he "knew he wasn't supposed to enter the US because he told officers that the was aware of this, but thought he would gamble anyway." In the margins, Mr. Danard has written, "These statements are completely false. Never would have risked going to gaol in your country."
The DHS Motion to Reopen attaches a list of Visa Waiver countries and proves that the immigration judge Richard Bartolomei incorrectly stated that Canada was among them. (Ironically, the purpose of this omission is to give Canadians the benefit of appealing a deportation order issued at the border in an immigration court, unlike Visa Waiver countries to which those prohibited entry must immediately return. DHS was turning a regulation designed to assist citizens from our friendly neighbor into a weapon for assaulting under pretense of legality a guy with long hair, a beat up VW, and puppies.)
Crucially, the DHS Motion to Reopen never offered new facts to challenge the initial decision's conclusion that the 1984 Burglary was NOT a Crime Involving Moral Turpitude. With no legal opinion supporting this charge, the government had no evidence for excluding Mr. Danard and ICE had no excuse for continuing to hold him in its jails.
Therefore, while the Motion might be relevant for the adjudicator's continuing legal education, it had no bearing on the government's legal authority to keep Mr. Danard locked up.
At this point Mr. Danard had been in touch with Katie Ruhl, an attorney at the Florence Immigration and Refugee Rights Project, a Legal Orientation Program in the area that provides limited legal advice and assistance to individuals in addition to its "Know Your Rights" presentations. According to email traffic from the Canadian Consulate in Los Angeles, who had been hearing from Rachel Danard and were trying for weeks without success to reach an ICE deportation officer, Ms. Ruhl had been in touch with Mr. Bartlemay, the DHS attorney, and obtained his agreement to drop the appeal and use the Motion to Reopen as an occasion for procuring Mr. Danard's release IF Mr. Danard stipulated that his 1984 burglary conviction was a Crime Involving Moral Turpitude.
This may look like a standard plea deal like those struck in criminal courts every day, but this deal was being offered AFTER an adjudicator had ruled against the legal conclusion forwarded by the DHS. In other words, the DHS knew that during the first hearing the immigration judge had thrown out their theory that Mr. Danard had committed a CIMT, and they knew that the immigration judge had ruled against allowing them an extension to pursue a fishing expedition to find something that might disprove his conclusions, and yet nonetheless went ahead and forced Mr. Danard into a hearing at which his only option for release from his unlawful confinement was agreeing to a statement that a Department of Justice official was on record as holding was untrue.
The second hearing was on December 29, 2008, over a month after Mr. Danard was kidnapped, and occurred before adjudicator Bruce Taylor, again in the Florence Service Processing Center, an ICE jail where, with other respondents, Mr. Danard had stood in a small room for hours before appearing in court.
Before arriving at the hearing, there had been several phone calls among officers at the Canadian Consulate, including those reflecting telephone conversations with DHS officers, although it was not until December 18, almost a month after Mr. Danard was in ICE custody that consular officer Marie Dextraze was able to actually reach a deportation officer in Arizona. She wrote to her colleagues that the officer had spoken "with the lawyers (did not elaborate, but likely the prosecutor) who would like for them to obtain copies of subject previous convictions in Canada. Officer [blank] asked if this is something we can assist with." This further proves that ICE was trying to deport Mr. Danard based on evidence that it did not possess, and that the agency was unwilling to heed the Canadian government's request to simply allow Mr. Danard to leave, rather than holding him and forcing him to leave.
The crucial part of the note states that Ms. Dextraze also spoke with Ms. Ruhl who
advised that she had spoke with the subject's prosecutor, Mr. Bartlemay, who would be willing to allow the subject to apply for voluntary departure. She explained that they were preparing a letter to the judge, who is absent until Dec. 29th, who would then reconsider then case, then make a ruling, [and] if all parties agree with voluntary departure travel arrangements would need to be made. This process would be much quicker than appeal which could take 4 to 6 months. She could not say why lawyers would be requesting info on subject's previous convictions other than to bolster their case for inadmissibility into the US.Mr. Danard says, "To me it was extortion, and that's how it played out in the next hearing. If I admitted I was removable I would be cleared for voluntary deportation. If I wouldn't admit that, I would have to come back February 2d to prove why my crime in Canada was petty."
The second hearing opens, as did the first, with Mr. Danard saying, "I'm just looking for a way back to Canada. I'm a tourist, not an immigrant."
After swearing in Mr. Danard, the adjudicator, Mr. Taylor, asks if he was admitted into El Paso as a B-1 visitor. Mr. Danard, who still has not seen the charging document on which Mr. Taylor is relying, never answers the question and the adjudicator never bothers to look for government documents that might prove this allegation. (Again, none exist.) Crucially, once again, Mr. Taylor never bothers to check for Mr. Danard's signature on his Notice To Appear nor inquire if he received this.
The adjudicator, Mr. Taylor, asks the government if it has the conviction records, and the woman presenting the case for the DHS -- her identity is not provided -- says, "No, your honor." In other words, rather than spend its time securing proof that Mr. Danard was convicted of a CIMT, the government used its resources to pressure Mr. Danard into conceding this, hence obviating the need for evidence.
Mr. Taylor then pushes Mr. Danard to concede that he really was convicted of a CIMT. Mr. Danard had reason to believe that the description Mr. Taylor was giving him for a CIMT, "evidence of entry or remaining on the premises in a building or structure with intent to commit a theft," did not fit the circumstances of his own conviction, and when he hedged on agreeing he was convicted of a CIMT Mr. Taylor added, "If you want to contest your removability then we can set it for another hearing probably for February 2 or 3, and the government would have to get copies of your conviction records."
Why threaten this additional extension? This was the hearing scheduled following the court's acceptance of the DHS Motion to Reopen. If the government had no evidence to support the charges in the NTA, then why not do what Mr. Bartolomei did and simply terminate the proceedings, again?
There are three reasons the adjudicator may have had for doing this. First, most immigration judges come out of law enforcement backgrounds, including ICE, and are deferential to those holding these positions. Second, many also are are nervous that they might be throwing out a case for lack of evidence and then the respondent, on release, commits a horrible crime and the media blames the adjudicator. (In fact, this actually happened to Mr. Taylor two years later.) Third, immigration judges know that if they rule against the government instead of rescheduling, then the government will file an appeal, a process that will take months, and hence actually result in the unfair confinement of a respondent for a period longer than than if they reschedule.
Now that 50% of all immigration cases involve people who are locked up, the regulations fixing these parameters need to be revisited. Again, there is nothing about Mr. Danard's hearing that is unusual. But only rarely is the government's ability to abuse its regulatory discretion so clearly revealed.
Eventually, after Mr. Taylor asks Mr. Danard for the third time if he agrees that his conviction meets the conditions for a CIMT, Mr. Danard says, "I have no contest with the removal proceedings. I have no fight left in me." A few minutes later the government agrees to allow Mr. Danard to buy a ticket and leave as soon as the appropriate information is shared with his deportation officer, and Mr. Taylor suggests that Mr. Danard will be out soon. Mr. Taylor never hints that even though everyone had agreed Mr. Danard should be home, it would be three more weeks until this happened.
Final post tomorrow on how ICE held Mr. Danard for three weeks AFTER he purchased an open ticket to Canada, and the Danard's dissatisfaction with their own government's efforts on their behalf.